The People, Respondent,v.Chadon Morris, Appellant.BriefN.Y.September 4, 2013To be argued by REBECCA HEIGHT (T IME REQUESTED: 20 M INUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, against CHADON MORRIS, Defendant-Appellant. W444444444444444444444444444444444444444444444444444 BRIEF FOR RESPONDENT W444444444444444444444444444444444444444444444444444 R ICHARD A. BROW N District Attorney Queens County Attorney for Respondent 125-01 Queens Boulevard Kew Gardens, New York 11415 (718) 286-6541 ROBERT J. MASTERS JOHN M. CASTELLANO REBECCA HEIGHT Assistant District Attorneys Of Counsel DECEMBER 3, 2012 Queens County Indictment Number 2368/07 ii TABLE OF CONTENTS Page No. PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Pre-Trial Application to Admit Evidence of the 911 Call . . . . . 12 The Court’s Limiting Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 The People’s Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Defendant’s Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARGUMENT THE COURT PROPERLY ADMITTED THE 911 CALL AND RELATED TESTIMONY AS BA CK G R O U N D, T O COMPL E T E T HE NARRATIVE, AND TO HELP THE JURY UNDERSTAND THE DISPUTED ACTIONS OF THE POLICE DURING THE ENCOUNTER IN WHICH THE WEAPON WAS RECOVERED . . . . . . . . . . . 27 A. The Trial Court Properly Admitted the 911 Call and Radio-run Testimony as Background Evidence, to Complete the Narrative and Explain the Police Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 B. Any Error in the Admission of the Background Evidence Was Harmless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 iii TABLE OF AUTHORITIES Page No. Old Chief v. United States, 519 U.S. 172 (1997) . . . . . . . . . . . . . . 38, 39n.18 People v. Acevedo, 32 N.Y.2d 941 (1973) . . . . . . . . . . . . . . . . . . . . . . 50n.21 People v. Agina, 18 N.Y.3d 600 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 People v. Alfaro, __ N.Y.3d __, 2012 NY Slip Op 7140, 2012 N.Y. LEXIS 3091 (Oct. 25, 2012) . . . . . . . . . . . . . . . . 30, 32, 59 People v. Allweiss, 48 N.Y.2d 40 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Alvino, 71 N.Y.2d 233 (1987) . . . . . . . . . . . . . . . . . . 30, 33, 60, 61 People v. Andrade, 87 A.D.3d 160 (1st Dept. 2011) . . . . . . . . . . . . . . . . . . 62 People v. Arafet, 13 N.Y.3d 460 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 People v. Baker, 14 N.Y.3d 266 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 People v. Barnes, 57 A.D.3d 289 (1st Dept. 2008) . . . . . . . . . . . . . . . 40, 58 People v. Buie, 86 N.Y.2d 501 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 People v. Butler, 59 A.D.3d 358 (1st Dept. 2009) . . . . . . . . . . . . . . . . . . . 41 People v. Cass, 18 N.Y.3d 553 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Castro, 101 A.D.2d 392 (1st Dept. 1984) aff’d, 65 N.Y.2d 683 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-33 People v Condon, 26 N.Y.2d 139 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 People v. Cook, 42 N.Y.2d 204 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 iv People v. Cook, 54 A.D.2d 528 (3d Dept. 1976) . . . . . . . . . . . . . . . . . 50n.21 People v. Cook, 93 N.Y.2d 840 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 People v. Crandall, 67 N.Y.2d 111 (1986) . . . . . . . . . . . . . . . . . . . . . 62n.25 People v. Crimmins, 36 N.Y.2d 230 (1975) . . . . . . . . . . . . . . . . . . . . . 63, 64 People v. Danvers, 59 A.D.3d 229 (1st Dept. 2009) . . . . . . . . . . . . . . . . . 37 People v. Dorm, 12 N.Y.3d 16 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Doshi, 93 N.Y.2d 499 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Gamble, 18 N.Y.3d 386 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Giles, 11 N.Y.3d 495 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . 30, 44 People v. Gillyard, 13 N.Y.3d 351 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 64 People v. Gines, 36 N.Y.2d 932 (1975) . . . . . . . . . . . . . . . . . . . . 32, 50n.21 People v. Governale, 193 N.Y. 581 (1908) . . . . . . . . . . . . . . . . . . . . . . . . 44 People v. Green, 35 N.Y.2d 437 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Green, 35 N.Y.2d 437 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 31, 50 People v. Huertas, 75 N.Y.2d 487 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Lewis, 69 N.Y.2d 321 (1987) . . . . . . . . . . . . . . . . . . . . 29, 30n.16 People v. Maher, 89 N.Y.2d 456 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 People v. Molineux, 168 N.Y. 264 (1901) . . . . . . . . . . . . . . . . . . . . . . 30n.16 People v. Montanez, 41 N.Y.2d 53, 55 (1976) . . . . . . . . . . . . . . . . . . . . . . 39 v People v. Morris, 89 A.D.3d 1112 (2d Dept. 2011) . . . . . . . . . . . . . . . . . . . 5 People v. Morse, 196 N.Y. 306 (1909) . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32 People v. Reid, 19 N.Y.3d 382 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 56n.24 People v. Resek, 3 N.Y.3d 385 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Resek, 307 A.D.2d 804 (1st Dept. 2004) . . . . . . . . . . . . . . . 48n.20 People v. Rivera, 96 N.Y.2d 749 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 40, 44 People v. Robinson, 93 N.Y.2d 986 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . 60 People v. Rojas, 97 N.Y.2d 32 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 People v. Scarola, 71 N.Y.2d 769 (1988) . . . . . . . . . . . . . . . . . . . . . . . 29, 30 People v. Smith, 97 N.Y.2d 324 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 People v. Stanard, 32 N.Y.2d 143 (1973) . . . . . . . . . . . . . . . . . . . . . . . 30-31 People v. Till, 201 A.D.2d 43 (1st Dept. 1994) . . . . . . . . . . . . . . . . . . . . . . 32 People v. Till, 87 N.Y.2d 835 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Tosca, 287 A.D.2d 330 (1st Dept. 2001) . . . . . . . . . . . . . . . . . . . 31 People v. Tosca, 98 N.Y.2d 660 (2002) . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Vails, 43 N.Y.2d 364 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 People v. Valerio, 24 A.D.3d 133 (1st Dept. 2005) . . . . . . . . . . . . . . . 40, 58 vi Statutes C.P.L. § 200.60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38n.18 C.P.L. § 710.70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54n.22 Penal Law § 205.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 Penal Law § 265.03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4 Other Authorities Prince, Richardson on Evidence, § 4, at p. 2 (10th ed.) . . . . . . . . . . . . . 29-30 Prince, Richardson on Evidence, § 4-502 (Farrell 11th ed) . . . . . . . . . . . . . 31 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : CHADON MORRIS, : Defendant-Appellant. : -------------------------------------------------------------------- x BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By order of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, defendant Chadon Morris appeals from a November 29, 2011, order of the Appellate Division, Second Department, which affirmed the June 24, 2009, judgment of the Supreme Court, Queens County (Knopf, J). By that judgment, defendant was convicted, after a jury trial, of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]), a class “C” felony. He was sentenced to a determinate prison term of five years, to be followed by five years of post-release supervision. Defendant is currently incarcerated pursuant to this judgment of conviction. 2 INTRODUCTION On May 25, 2007, at about 12:35 a.m., an individual named Frank Springer called 911 to report a robbery. Mr. Springer told the 911 operator that an African-American male had just placed a gun in his face and had stolen a chain from his neck. The gunman, according to Mr. Springer, was wearing dark pants, a white shirt with red sleeves, and had a white band-aid on his chin; Mr. Springer also noted that the perpetrator was accompanied by two other African-American males. Police Officers Moore and Ziminski received the radio run and responded rapidly, with lights and sirens, to the area of the crime. Within less than two minutes, they arrived near the crime scene and observed three African- American males. The officers silenced their approach, turning off the lights and sirens, and directly pulled up next to defendant, who was wearing a white tee-shirt with red sleeves, dark pants, and had a white bandage on his chin. Paying no attention to the other two men, the officers immediately beckoned defendant, and placed his arms against the trunk of their patrol car. One officer held him against the car, while the other searched him and discovered, inside of his rolled-up left pants cuff, a loaded and operable .22 caliber black Baretta pistol. As the officers stepped back to observe the gun, defendant attempted to 3 flee, but was thwarted by one of the officers, who held him in a bear hug. The two scuffled, as defendant resisted arrest, causing minor injuries to defendant. As a result, defendant was charged with two counts of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[1][b], [3]), and Resisting Arrest (Penal Law § 205.30) (Queens County Indictment Number 2368/07). Thereafter, defendant proceeded to trial before the Honorable Stephen A. Knopf, Supreme Court, Queens County, and a jury. Prior to jury selection, the People requested, orally and in writing, that the court permit them to introduce the 911 recording, arguing that it was necessary to complete the narrative and explain the police actions, including the officers’ initial stop of defendant and their subsequent conduct during the search. This would be relevant to their credibility, the prosecutor argued, and was necessary to counter any unfair speculation concerning police harassment. Defense counsel objected, claiming that the evidence would be too prejudicial, and instead asked that the court instruct the jury that the circumstances of the stop had been resolved and was not for their consideration, which, he claimed would resolve the People’s concerns; counsel also promised to refrain from arguing that the police stop was improper and stated that defendant would assert a temporary-and-lawful-possession defense. 4 Following this hearing, the trial court permitted the prosecutor to introduce the 911 recording and police testimony regarding the radio run as appropriate background evidence to explain the police actions, with the understanding that it would instruct the jury on the limited nature of the admissibility of the evidence. At the trial, the 911 call was introduced with a limiting instruction, which instructed the jury that the statements contained in the 911 recording were not admitted for their truth but rather only to explain the police actions; this instruction was repeated three additional times during the course of the trial. Defendant also testified, claiming that he had coincidentally just found the weapon between two dumpsters when the police arrived, that he tried to tell them about the gun but they did not listen to him, and that the police punched and hit him, causing various injuries. Defendant also claimed that he had no band-aid on his chin at the time the police arrived. The prosecutor did not imply in his cross-examination of defendant or in his summation that defendant had committed the robbery. At the conclusion of the trial, defendant was convicted of one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]). Defendant was sentenced as noted above. 5 In June, 2011, defendant appealed his judgment of conviction through assigned counsel and argued that the lower court had erred by admitting the 911 call reporting the armed robbery because it was unduly prejudicial to his defense of temporary lawful possession and unnecessary to establish the propriety of the police conduct. Defendant also argued that the court’s instructions did not cure the prejudice to defendant, and the error was not harmless. In August, 2011, the People filed a response to defendant’s brief, opposing defendant’s claim. The People argued that the trial court had properly permitted the People to introduce this evidence in order to provide background information regarding, and to complete the narrative of the events surrounding, the stop and frisk of defendant. The People further argued that the potential prejudice to defendant did not outweigh its probative value, and that the trial court negated any prejudice to defendant through its limiting instructions. Finally, the People argued that any error would have been harmless beyond a reasonable doubt. On November 29, 2011, the Appellate Division, Second Department, affirmed defendant’s judgment of conviction. People v. Morris, 89 A.D.3d 1112 (2d Dept. 2011). The Appellate Division held that the 911 6 recording was properly admitted to “provide background information as to how and why the police pursued and confronted [the] defendant.” Id. (quoting People v. Tosca, 98 N.Y.2d 660, 661 [2002]). The Appellate Division further held that the probative value of this evidence outweighed its potential prejudice, and that the trial court nullified any potential prejudice by instructing the jury on multiple occasions that its admission was for a limited purpose. Id. SUMMARY OF ARGUMENT This Court should affirm the order of the Appellate Division and hold, like that court, that the trial court properly allowed the People to establish the circumstances leading to defendant’s arrest. This background evidence was necessary to complete the narrative of this brief, eight-minute encounter between defendant and the police officers and to explain the police conduct during the entire incident. In the particular circumstances of this case, the probative value of the evidence far outweighed any potential prejudice to defendant, particularly in light of the lower court’s repeated instructions that the evidence was not admitted for the truth of the matter asserted therein, but to explain the police actions. See People v. Tosca, 98 N.Y.2d 660 (2002); People v. Till, 87 N.Y.2d 835 (1995). 7 On a basic level, the 911 recording and police testimony regarding the radio run were necessary to explain the reason that the police had responded to the specific location at the specific time and stopped and searched defendant. But it was also necessary that the jury understand the nature of the reported crime and that the police were responding to a violent offense, committed by an armed perpetrator, so that the jurors would understand the urgency of the police response. It was also necessary to convey the personal danger to the individual responding police officers, such that they placed defendant, virtually on sight, against the back of their car, with one officer holding him against the car, and the other officer searching him, thereby uncovering the gun. The background evidence in this case informed every single one of the police officers’ actions from their receipt of the radio run until defendant was placed in handcuffs and was thus necessary for the jury to fairly assess the case as a whole. Indeed, without the evidence, the jury could have been left to speculate that the police had singled defendant out for improper reasons, such as profiling, or had acted in an overly aggressive manner, reflecting negatively on the officers’ credibility as to the recovery of the weapon moments later. Moreover, defendant, through his testimony, directly challenged the conduct of the officers throughout the encounter, claiming that they not 8 only immediately threw him up against the car but hit defendant in the back of the head, slamming it against the back of the car, jumped on defendant, continued to hit him, and caused him to fall to the ground, resulting in various injuries. He also placed in issue how and when he had acquired the bandage, attributing his injuries solely to his handling by the police, and where and how the weapon was recovered, claiming that it fell out of his waistband. In the absence of the 911 call, the jury could readily have held a suspicious or overly aggressive handling of defendant against the officers and concluded that the police were capable of and in fact did alter their testimony in order to convict defendant. Defendant nevertheless contends that the 911 recording and radio- run testimony had no probative value because it was relevant only to the propriety of the police conduct in stopping defendant. He claims that this issue was no longer in the case once defendant suggested that the court instruct the jury that the reason for defendant’s stop had been resolved and was not an issue for its consideration and defendant promised that he would not argue that the police unjustifiably stopped defendant and would assert a defense of temporary and lawful possession. 9 But defendant’s argument takes an unduly narrow view of the purposes for which the 911 and radio-run testimony were admitted: their admission and probative value were never limited to the singular question of whether the police properly stopped defendant. Rather, it was admitted to explain all of the police actions, including the urgency and aggressiveness of the police response leading immediately to the recovery of the weapon. The evidence was thus necessary to place the police conduct in context and to fairly assess the credibility of the officers, who might readily appear overly zealous. Moreover, defendant’s alternative to the People’s evidence was an inadequate substitute for the 911 recording and live testimony by the police officers. The court’s instruction and defendant’s promise of restraint would not have conveyed to the jury the urgency of the police response and would not have explained that the response presented a grave personal danger to the individual police officers. Without this information, the jury could easily and unfairly have attributed the informational lapse to the People. With only a vague and uninformative instruction from the court, the jury could have suspected that the police had acted overly aggressively, as defendant alleged, and could have held these actions against the officers and concluded that the officers altered their testimony to rebut the innocent possession defense. 1 In People v. Resek, after ruling that the prejudicial impact outweighed the probative value, the Court noted that the judge simply could have instructed the jury that the arrest was “lawful” and that it was not to speculate about its reasons. 3 N.Y.3d at 390. 10 Contrary to defendant’s argument, People v. Resek, 3 N.Y.3d 385, 389 (2004), does not compel a different result because it is materially – indeed “critically” – distinguishable from the present facts. In People v. Resek, the Court ruled that the uncharged crime evidence, introduced to explain the police actions, was unduly prejudicial. Id. But, significantly, in People v. Resek, a grand jury had “cleared” the defendant of any criminal liability for the uncharged crime evidence, a fact that the jury never learned. Id. Thus, the background evidence presented an “incomplete and prejudicial narrative” that was exacerbated by the lower court’s instruction, which allowed for the possibility that the defendant had actually stolen the car.1 Id. Here, in contrast, defendant was never cleared of the robbery charges; instead, the People were simply unable to contact the complainant, who had identified defendant as the perpetrator at the scene of the crime. This case, thus, did not present the overwhelming unfairness that a defendant could face prejudice based on crimes that he did not commit and did not incorrectly imply that defendant’s guilt was somehow unresolved, when the charges had been dismissed. Moreover, here, the potential prejudice to defendant was far 11 less than the potential prejudice presented in People v. Resek: in Resek, the officers testified that they had directly observed defendant in a car that had been reported stolen. Here, no one testified or even implied that defendant had perpetrated a robbery; instead, the court told the jury that defendant was not charged with the robbery. Even the prosecutor was careful not to suggest that defendant was actually guilty of the robbery. Thus, in this case, the potential prejudice to defendant was small, compared to the probative value of the evidence, and, as the Appellate Division correctly determined, was “nullified” by the lower court’s careful and repeated limiting instructions, which informed the jury that defendant had never been charged with a robbery. For these reasons, the lower court properly determined that the probative value of the background evidence outweighed its prejudicial impact to defendant. But, even assuming there were an error, it would have been harmless because the People’s evidence against defendant was overwhelming. Two officers testified, virtually unimpeached, that they had recovered the gun from inside of defendant’s rolled-up, cuffed pants. This gun was introduced into evidence for the jury to observe, and defendant admitted that he had 12 possessed it, albeit for innocent purposes. The People also overwhelmingly disproved defendant’s temporary-and-lawful-possession defense because his account was incredible, based upon his allegedly unwitting discovery of the loaded gun underneath and between two dumpsters, his casual side trip to the store after the discovery rather than to the police precinct, and his continued misfortune that allegedly frustrated his ability to safely report the gun to the police. Thus, should this Court find that the lower court had erroneously admitted the People’s background information, it should also find that the error was harmless. STATEMENT OF FACTS The Pre-Trial Application to Admit Evidence of the 911 Call Prior to trial, the People made an application, orally and in writing, to admit a 911 call by an individual named Frank Springer that reported an armed robbery (Memo: A4-7; Hearing: A24, 26). The People explained the circumstances of the 911 call and police response – that Mr. Springer had conveyed a detailed description of the perpetrator and related his last known location, and that, as a result of Mr. Springer’s 911 call, Officers Moore and Ziminski responded and arrived in the area of the crime, where they observed defendant, who matched the perpetrator, wearing a large white bandage on his 2 Both in their oral and in their written application, the People cited, among other cases, People v. Tosca, 98 N.Y.2d 660 (2002). 13 chin, a white tee-shirt, and dark pants, and thereafter discovered the gun (Memo: A4-7; Hearing: A26-27). The prosecutor further explained that, while Mr. Springer had identified defendant at the scene of the arrest as the individual who had robbed him and had identified the recovered gun as the one that defendant had used in the robbery, the People were never able to contact Mr. Springer (Memo: A5, note 1; Hearing: A24-25). The People then argued that the credibility and conduct of the police officers would be “critical and controlling,” and that it was essential that the jury understand the reasons that the officers drove with lights and sirens to find the perpetrator, focused their attention on defendant, and immediately placed defendant on the car and frisked him (Hearing: A27; see also Memo: A5-6). Without this information, the People stated, the jury would speculate that the police had harassed defendant, a young African-American male, for being out late at night and conclude that the officers were not credible (Memo: A7; Hearing: A27-28). For these reasons, the evidence was necessary to complete the narrative and “would go directly to their credibility and affect the jurors’ consideration about this case in whole” (Hearing: A28; see also Memo: A4-7).2 14 In response, defense counsel argued that the prosecutor’s contention that the jury might be concerned with the police stop and search could be resolved by a court instruction that “the reasoning for the defendant’s stop has been dealt with, is not a matter for your concern” (Hearing: A29-30). Defense counsel further promised the court that he would obey a court order that he not argue that the police had stopped defendant “for no reason” and that the police were therefore untrustworthy (Hearing: A29-30, 38). Defendant also argued that the court should allow the arresting officer to testify only that he stopped defendant pursuant to a radio run and that the court should then instruct the jury that there was no illegal search and seizure (Hearing: A34). Defense counsel then argued that it would be unfair to admit evidence by a witness who was not subject to confrontation and would force defendant to defend against the robbery case, without a witness (Hearing: 31). He also claimed that the evidence would be too prejudicial to defendant’s case because the jury would speculate that defendant had committed a robbery and would be “focused completely” on that fact (Hearing: A30-31, 37). Finally, counsel argued that, it would be “too much to ask the jury” not to consider the robbery allegation on the issue of whether or not defendant possessed the gun with the intent to use it unlawfully against another 3 The court explained that he could not tell the jury that there had been no illegal stop and seizure but would rather state that it was “a matter of law that is resolved by the Court. It’s not an issue for your consideration” (Hearing: A34). In response, defense counsel stated, “That’s fine” (Hearing: A34). 4 The court repeated this rationale during the Sandoval hearing (Hearing: A79). 15 (Hearing: A32-34). Counsel further stated that defendant would assert a defense of temporary and lawful possession (Hearing: A37).3 The court stated that “police conduct is always on trial “ and noting that defendant’s suggestion would “emasculate” the People’s case and force the jury to speculate about the stop (Hearing: A35-36). It then ruled that the 911 tape was admissible as background information and noted that it explained the police actions of “responding to a particular area and looking for a particular individual pursuant to a description that was conveyed to them” (Hearing: A40);4 otherwise, the jury could speculate that “defendant was the victim of improper police conduct altogether and he was just singled out as a young Black male in Queens to be harassed by the police with no good reason whatsoever” (Hearing: A42). Noting that it is “a balance,” the court reiterated that the “evidence is appropriately admitted as background information and to explain the police actions” and explicitly stated, “I do believe the case law is on the People’s side as spelled out in this memo which I’m adopting by reference” (Hearing: A40-41, 45-46). The court indicated that it would instruct 16 the jury that the evidence was not admitted for the truth, but to explain the actions of the police, and would further instruct the jury that defendant was not charged with robbery (Hearing: A40-42, 45). Immediately thereafter, the court conducted a Sandoval hearing. In addition to the prosecutor’s application to cross-examine defendant with respect to prior convictions, the court heard his application to cross-examine defendant with details from the robbery because a transitory-and-lawful- possession defense would open the door to those details (Hearing: A47, 77-78). Defense counsel opposed the application, arguing that it would allow the People to affirmatively use the background information to counter any claim by defendant that he was not involved in the robbery (Hearing: A79-81). The court denied the application, noting that it could “turn this into a trial on the robbery case,” and that further limiting instructions regarding the robbery evidence would be ineffectual and confusing (Hearing: A82-83). The Court’s Limiting Instructions During the course of the trial, the court issued four limiting instructions to the jury regarding its consideration of the background evidence. First, after the People’s opening, the court stated: [Y]ou did hear the Assistant District Attorney refer to a 911 call and reference . . . details of . . . a complainant [stating] that he had 17 just been robbed at gunpoint. I am telling you right now, that as to any evidence that is admitted on those issues, that evidence is being admitted for really one reason and one reason alone, which is to explain the police actions that took place in this case. I want you to keep in mind up front that such evidence is not being admitted for the truth of what is contained in that 911 call. I’m telling you further . . . that the defendant is not charged [] with a robbery or indeed a gun point robbery in this case. (Opening: A104-05). After the People played the 911 call, the court again stated: Those statements from the individual that you heard on the 911 CD, they are not being admitted at this trial for the truth of what that person is saying to the 911 dispatcher. Indeed, if you hear any further testimony at this trial relative to those statements made by that caller, that evidence is not being admitted for the truth of what the caller is saying to the 911 dispatcher. As I told you yesterday, that evidence is admitted now and any further evidence related to this issue is admitted for a specific, limited purpose. The evidence is being admitted to explain the police actions, to explain what the police did with that, after getting those transmissions or getting at least the substance of those transmissions relayed to that. That’s the only reason it’s being admitted. I am cautioning you again, the defendant is not on trial for robbery. He’s not on trial for robbery with a gun and you have to keep that all in mind. (Proceedings: A133-134). Third, after Officer Ziminski testified that he had received a radio run for a gunpoint robbery, the court stated, “I reiterate that same instruction, we are not trying a robbery. This testimony is not being offered for the truth 5 The court also provided the jury a transcript to use as a demonstrative aid (A8-11, 131-133). 18 that a robbery in fact took place, but just to explain his actions in response to getting a radio run as to an alleged robbery” (Ziminski: A346). Finally, during the prosecutor’s summation, after the prosecutor played the 911 recording, the court stated, Again, I instructed everybody that the evidence was admitted for a limited purpose. It’s admitted as evidence to explain the police actions that were taken in response to them getting a summary of what was in that 911 call. Again, defendant is not on trial for a robbery, and that evidence was only admitted for a limited purpose and it’s certainly not for the truth that a robbery in fact occurred or that defendant was in fact the one who did that robbery (Summation: A582-83). The People’s Evidence The People introduced a 911 call into evidence for the limited purposes described above. On May 25, 2007, at 12:35 a.m., the 911 caller, Mr. Springer, stated, “A guy now pulled a gun in my face,” and stole his neck chain, near Beach 21st Street and Elk Avenue, and that he was headed towards 20th Street, towards CVS, with two other Black men.5 He stated that the perpetrator was also Black, had a white band-aid on his chin, was wearing a white short- sleeved shirt with red sleeves, and dark pants; when asked by the operator 6 Officer Moore testified that he was initially looking for a male black, wearing a white tee-shirt with red sleeves, dark pants, and with a large white bandage; Officer Ziminski testified that the radio run described defendant as a black male, wearing baggy sweat pants, a white tee-shirt with red sleeves, glasses, and with a large, white band-aid on his chin (Moore: A144, 213-14; Ziminski: A347-48, 374). During cross- examination, however, after reviewing the Sprint report, Officer Moore stated that the radio run described the perpetrator as a black male, with a white bandage on his chin, and wearing blue jeans and a white short-sleeved shirt (Moore: A 213-214, 220). Also, during cross-examination, Officer Moore stated that, in the arrest report, he had described the shirt as gray because it was dirty (Moore: A239, 262). 19 whether they were blue jeans, he stated, “something like that” (People’s Exhibit 1; A8-11; Proceedings: A130). At about 12:35 a.m. on May 25, 2007, Police Officers EDWARD MOORE and GLENN ZIMINSKI received a radio run of a gunpoint robbery at Beach 20th Street between Plainview Avenue and Seagirt Boulevard (Moore: A139-42; Ziminski: A345-46, 347). As a result, the officers were looking for three black males, with a particular focus on one those men, whom the radio run described as wearing a white tee-shirt, blue jeans, and with a white bandage on his chin (Moore: A144, 213-14; Ziminski: A347-48, 374).6 The officers responded, driving quickly in their patrol car with lights and sirens (Moore: A142; Ziminski: A346, 374). About two minutes later, as they turned onto Beach 20th Street and silenced the lights and sirens, the officers saw three black males, including defendant, all in their late 20s or early 30s, walking together on Beach 20th Street (Moore: A143-48, 214-16; 7 Officer Ziminski also testified that defendant was wearing glasses (Ziminski: A351). 20 Ziminski: A346, 348-50, 374-75). No one else was on the street at that location (Ziminski: A378). They were near the center of the block, in the vicinity of some stores – an area that was illuminated by street lights – and walking in the direction of the officers, toward Seagirt Boulevard, away from Plainview Avenue, away from the scene of the robbery, away from the 101 Precinct, and away from defendant’s home at 22-15 Collier Avenue (Moore: A143-46, 165, 202-03, 207; Ziminski: A346, 349-50, 369, 373). Defendant was wearing baggy black sweat pants and a white tee-shirt with red sleeves, and he had a large white bandage on his chin (Moore: A148, 191; Ziminski: A348-49, 351).7 The officers pulled up next to defendant and the other two individuals, both officers exited the car, and they asked defendant to stop and approach the vehicle; at this time, their guns were not drawn (Moore: A146-48, 219-20; Ziminski: A349-52). Defendant, who was holding a bottle of beer that was inside of a brown paper bag, complied (Moore: A149-50, 220; Ziminski: A350-51, 353). Because they were responding to a job with a possible weapon, for safety, Officer Ziminski grabbed defendant’s arm, placed defendant’s hands on the trunk of the vehicle, and placed his hand on defendant’s back (Moore: 8 Detective JAMES CLONTZ testified that the gun and ammunition contained therein were operable (Clontz: A308-10, 318). 9 By this time, other officers had arrived at the scene (Ziminski: A377). When defendant grabbed the bottle, Officer Ziminski was concerned for his safety and for the safety of Officer Moore, since, with a bottle, “you can get smashed over the head” (Ziminski: A358). 21 A150-52, 187-88, 243; Ziminski: A352-55). Defendant’s beer bottle was placed on the car, beyond his reach (Moore: A153; Ziminski: A353-54). While Officer Ziminski held defendant against the car with one hand placed on defendant’s back, Officer Moore frisked defendant, searching his chest area, before moving to his waist and left leg, finding nothing unusual (Moore: A153-55, 158, 188-89, 232-33; Ziminski: A354-56). When Officer Moore reached defendant’s left ankle, he felt a hard object approximately the size of a hand; defendants pants were cuffed multiple times, rolled up on the inside of his pants (Moore: A156-57; Ziminski: A356). As Officer Moore unrolled defendant’s pants, which were thick and heavy, he found a loaded and operable .22 caliber black Baretta pistol (Moore: A157, 189; Ziminski: A356- 57).8 Both officers stepped back to look at the gun, and defendant grabbed his beer, pushed off of the car, and attempted to run. Officer Ziminski grabbed defendant in a bear hug, and they both fell against the car (Moore: A157-60, 243; Ziminski: A357-60, 377-79).9 Defendant continued to struggle, 10 The photograph was introduced as People’s Exhibit 3 (Moore: A197). 22 and both he and Officer Ziminski fell to the ground before defendant was finally placed in handcuffs, with the assistance of Officer Moore (Moore: A160-63, 269; Ziminski: A360-65). The arrest time was recorded as 12:43 a.m. (Moore: A218-19). During the struggle, the bandage on defendant’s chin fell off and was not recovered (Moore: A164, 240; Ziminski: A364). As a result of the struggle, defendant had a small cut near his forehead, a bump in the back of the head, and it reopened his chin wound (Moore: A198-99; Ziminski: A363- 64, 366-67). Defendant was treated at a local hospital; no officers were injured during the struggle (Moore: A198-99; Ziminski: A363-64, 366-67, 378). Meanwhile, the other police officers searched the two men who were stopped with defendant; they were released, and nothing was recovered from them (Moore: A163-64, 233-34; Ziminski: A364-65). The officers also did not recover a chain from defendant (Moore: A234, 236-37). Following his arrest, defendant was photographed (Moore: A192- 93).10 In that photograph, defendant was wearing the same pants and boots as he was when the officers initially stopped him (Morris: A190-91, 197-98; Ziminski: A367-68). The photograph also shows defendant wearing a hooded sweatshirt, with the red sleeves from the tee-shirt that he had been wearing 11 Although defendant did not contact her, Ms. Coles brought him the sweatshirt at the precinct (Moore: A208-19, 237, 261; Ziminski: A368). 12 Defendant stated that he had arrived at work on May 24, 2012, at about 6:30 a.m. (Morris: A443). Defendant further stated that, when the police stopped him on May 25, 2012, he was drunk, but not “stumbling over the place drunk” (Morris: A460-61). Officer Moore stated that defendant smelled of alcohol, but was not drunk (Moore: A154, 165-66, 244). 13 In 2000, defendant was convicted of Unauthorized Use of a Vehicle, after a friend, driving a stolen vehicle, picked him up to go to the store and then hit another vehicle (Morris: A450-51, 470-72). In 2001, defendant was convicted of drinking beer in public, and in December, 2003, he pleaded guilty to disorderly conduct for smoking marijuana on his front porch (Morris: A451, 454). In April, 2008, defendant possessed eight ounces of marijuana. According to defendant, his friend asked him to hold the bag of marijuana while he lit a cigarette, and then after, about a second, the police arrived (Morris: A473-78, 503). 23 visible from the pocket area of the sweatshirt (Morris: A190-91, 197-98; Ziminski: A367-68).11 The photograph also depicts two band-aids on his face that were not present when the police initially stopped him (Moore: A191, 199). Defendant’s Evidence In May, 2007, defendant was twenty-seven years old, lived at 22- 15 Collier Avenue with his grandmother, and worked as an inventory auditor (Morris: A441-42).12 After defendant arrived home from work at about 1:00 p.m., on May 24, 2007, his friends came over to watch the playoff game on television and drink beer (Morris: A443-44). They left at about 11:30 p.m. (Morris: A443-44).13 14 Officer Moore testified that the CVS store has several dumpsters that are not in an illuminated area (Moore: A258, 268). Although defendant’s testimony regarding the placement of the dumpsters was somewhat unclear, later, when the prosecutor stated, “you said that [the picture] fairly and accurately reflected what the area looked like . . . [e]xcept for the lighting?” and then asked, “And only later, later did you suddenly say, oh, by the way it wasn’t the dumpsters that you see in this picture, it was two dumpsters that aren’t in this picture, isn’t that what you said,” defendant agreed (Moore: A508). Defendant also stated that the dumpsters are placed underneath the CVS sign on Tuesday and Thursday, but otherwise remain in the back of the store, as depicted in the photograph (Moore: A509-10). 24 After having something to eat, defendant left the house to go buy cigarettes (Morris: A444, 484, 504). Defendant had no facial injury at this time and did not have a band-aid on his face; he was wearing black pants, with a zipper and elastic at the base, and a gray tee-shirt with red sleeves (Morris: A448-50, 459, 484). Defendant confirmed that the arrest photograph, previously introduced as People’s Exhibit 3, showed the clothing that he had worn that night, including the tee-shirt (Morris: A458-59). On the way to the store, he saw something on the ground, by the rear wheel, between two dumpsters in the CVS parking lot; defendant stated both that the dumpsters were located on the side of the CVS, facing Plainview Avenue, where there were no lights, and that the dumpsters were located on the sidewalk, underneath a CVS sign, where there were lights (Morris: A444-45, 456-57, 465-66, 505, 508).14 Thinking it was a toy, defendant picked it up, but 25 then realized, from its weight, that it was not a toy (Morris: A444-45, 493, 504- 07). Defendant put the gun in his pocket, but it made his pants hang and “it really looked like I had something on me,” so defendant put the gun in his waistband (Morris: A444-45, 483-84). Defendant wanted to call the police to report the gun, but his cell phone battery was dead (Morris: A445, 480-82). Although the precinct was about five blocks away, or about a five minute walk, defendant did not go there (Morris: A482). Defendant was about a two-minute walk from his home, but, since he was close to the store, defendant then walked to the store, which was located on Beach 20th Street, between Seagirt Avenue and Plainview Avenue, where he bought cigarettes and a beer, and began walking home where he was going to call the police; he did not intend to keep the gun (Morris: A445, 452, 461, 482-85, 503). After having the gun for less than two minutes, the police stopped defendant as he walked alone towards his home, away from Seagirt Boulevard, holding his beer (Morris: A446, 485-86, 460). Defendant complied with the police order to stop and put his hands on the police car and stated that he had to tell them something, that he just found something (Morris: A446-47). Officer Ziminski pushed defendant down while Officer Moore grabbed his 15 Defendant’s redacted medical records were entered into evidence as Defense Exhibits E and F (Morris: A454, 511). 26 waist, causing the gun to fall to the ground (Morris: A447, 463). Defendant repeated that he had just found the gun, when one of the officers pushed him back on the car (Morris: A447) When the police told defendant that he was “going down for a robbery,” with his hands still on the car, defendant quickly turned his head in shock (Morris: A447, 451, 463-64). The officers hit defendant in the back of the head, slamming it against the back of the car, and Officer Ziminski jumped on defendant, continued to hit him, causing him to fall to the ground (Morris: A447-48, 451). Defendant was subsequently taken to the hospital where he received about five or six stitches in his chin area, and stitches to his forehead and the back of his head; also, he suffered pain to his hip and shoulders (Morris: A448-49, 464, 468-69).15 27 ARGUMENT THE COURT PROPERLY ADMITTED THE 911 CALL AND RELATED TESTIMONY AS BACKGROUND, TO COMPLETE THE NARRATIVE, AND TO HELP THE JURY UNDERSTAND THE DISPUTED ACTIONS OF THE POLICE DURING THE ENCOUNTER IN WHICH THE WEAPON WAS RECOVERED. The lower court properly permitted the People to introduce a 911 recording that reported an armed robbery, as well as police testimony regarding their response to the related radio run. This background evidence completed the narrative of the event and explained the police conduct. Not only did it detail the specific reasons for defendant’s stop and subsequent search, but it also conveyed to the jury the urgency of the report and the potential danger to the individual police officers throughout their encounter with defendant. Without this information, the jury might have unfairly attributed the gap in the narrative to the People, engaged in unwarranted speculation regarding the police conduct, and determine that an overly aggressive police response was consistent with defendant’s testimony of how the officers refused to listen to him, choosing to beat and manhandle him instead. Defendant, nevertheless, claims that the propriety of the police conduct, or the reason that the police confronted defendant, was not at issue 28 because he had requested that the court instruct the jury that it was not to consider the circumstances of the stop, as the issue had been resolved, and because he had promised not to challenge the propriety of his initial stop and to assert a temporary-and-lawful-possession defense. But, contrary to defendant’s contention, the evidence was not admitted solely regarding the propriety of the police stop: it was admitted to explain all of the police officers’ subsequent actions in the case, including the decisiveness of their response and the disputed actions in which he was allegedly manhandled. Moreover, given the facts particular to this case, defendant’s proposal was an inadequate substitute for the 911 recording and live testimony by the police officers. It would have done no more than try to remove a legal issue from the jury’s consideration, but the jury’s assessment of the conduct of the police was critical not just to the legal issue of the propriety of the stop, but also to the credibility of the officers and the believability of defendant’s account of the entire encounter, including what he attempted tell them, how he was handled, and how and where the police recovered the weapon. Similarly, defendant’s reliance on People v. Resek, 3 N.Y.3d 385, 389 (2004), is mistaken. The Resek Court relied on the unusual fact that the grand jury had refused to return an indictment on the uncharged crime, whereas 29 here, no such adjudication ever took place. Accordingly, the Appellate Division correctly rejected defendant’s contention and affirmed his judgment of conviction. A. The Trial Court Properly Admitted the 911 Call and Radio- run Testimony as Background Evidence, to Complete the Narrative and Explain the Police Actions. Evidence that an individual called 911 to report an armed robbery and that defendant matched the description of the perpetrator was necessary background information that completed the narrative of the brief encounter between defendant and the police officers, and explained the conduct of the police officers throughout the episode. Without it, the jury would have been left to speculate about why the officers acted as they did and could have concluded that the unexplained actions of the officers were more consistent with the account offered by the defense. The trial court thus acted within its discretion in admitting it. All relevant and probative evidence is admissible at trial unless it is subject to an exclusionary rule. People v. Scarola, 71 N.Y.2d 769, 777 (1988). Evidence is relevant if it “has any ‘tendency in reason to prove any material fact.’” People v. Lewis, 69 N.Y.2d 321, 325 (1987) (quoting Prince, 16 Among the items that the People may prove through prior crimes evidence are intent, motive, knowledge, common scheme or plan, or identity of the defendant. People v. Lewis, 69 N.Y.2d at 325; People v. Molineux, 168 N.Y. 264, 293 (1901). 30 Richardson on Evidence, § 4, at p. 2 [10th ed.]); People v. Giles, 11 N.Y.3d 495, 499 (2008); People v. Scarola, 71 N.Y.2d at 777. Evidence of a defendant’s uncharged crime is admissible if its probative value outweighs the possible prejudice to the defendant. People v. Alvino, 71 N.Y.2d 233, 241 (1987); People v. Allweiss, 48 N.Y.2d 40, 47 (1979). Of course, evidence that is relevant solely to a defendant’s criminal propensity is inadmissible as a matter of law. People v. Alvino, 71 N.Y.2d at 242; People v. Allweiss, 48 N.Y.2d at 46. But evidence will not be excluded “simply because it may also reveal that the defendant has committed other crimes.” People v. Allweiss, 48 N.Y.2d at 47. Among the proper, non-propensity purposes to admit an uncharged crime is to establish the background of the charged crime, or to complete the narrative of the event.16 People v. Till, 87 N.Y.2d 835, 837 (1995); see also People v. Alfaro, __ N.Y.3d __, 2012 NY Slip Op 7140, 2012 N.Y. LEXIS 3091 (Oct. 25, 2012); People v. Gamble, 18 N.Y.3d 386, 398 (2012); People v. Dorm , 12 N.Y.3d 16, 19 (2009); People v. Resek, 3 N.Y.3d 385, 389 (2004); People v. Tosca, 98 N.Y.2d 660, 661 (2002); People v. Stanard, 32 N.Y.2d 17 Moreover, the Appellate Division noted that the evidence was necessary to explain “the aggressive nature of the police confrontation with defendant.” People v. Tosca, 287 A.D.2d at 330. 31 143, 146 (1973); People v. Morse, 196 N.Y. 306, 310 (1909); Prince, Richardson on Evidence, § 4-502 (Farrell 11th ed). “In appropriate instances, evidence of uncharged crimes may be allowable as background or narrative because juries might ‘wander helpless’ trying to sort out ambiguous but material facts.” People v. Resek, 3 N.Y.3d at 390 (quoting People v. Green, 35 N.Y.2d 437, 441 [1974]). For example, in People v. Tosca, the People presented evidence that, shortly before the defendant’s arrest for weapons possession, a cab driver reported having encountered defendant with a gun. 98 N.Y.2d at 661; People v. Tosca, 287 A.D.2d 330 (1st Dept. 2001). This testimony, the Court held, was not admitted for its truth but rather to “provide background information as to how and why the police pursued and confronted defendant,” and favorably noted that the trial court had issued two explicit limiting instructions. 98 N.Y.2d at 661.17 Similarly, in People v. Till, the People presented evidence that the police had initially pursued the defendant because two civilians reported that he had robbed them at gunpoint; thereafter, during the police pursuit, the 32 defendant fired shots in the direction of the pursuing officers. 87 N.Y.2d at 836; 201 A.D.2d 43, 44-45 (1st Dept. 1994). To establish this background, defendant’s accomplice testified that defendant had pointed a .357 magnum at three Hispanic men and robbed them. People v. Till, 201 A.D.2d 43, 45 (1st Dept. 1994). And, upon review, this Court held that the trial court had properly allowed this evidence because it established a motive for the defendant’s later crimes and was necessary to provide the jury with a “thorough appreciation of the interwoven events leading to defendant’s culminating criminal conduct and of the competing theories of what happened and why . . ..” 87 N.Y.2d at 837; see also People v. Alfaro, 2012 NY Slip Op 7140 at *3 (court properly allowed police to testify that they recovered imitation pistol and handcuffs from defendant to complete narrative and to prove intent); People v. Gines, 36 N.Y.2d 932 (1975) (court properly allowed victim to testify that immediately following knife-point robbery, defendant raped her; although defendant was not charged with rape, it completed narrative and was relevant to identity); People v. Morse, 196 N.Y. at 310 (evidence of highway robbery admissible as part of “continuous transaction,” to prove that defendant was subject to arrest, and to show his motive and intent); People v. Castro, 101 A.D.2d 392 (1st Dept. 1984) (court permissibly allowed People to establish, as background, that police 33 conducted “Task Force” investigation, leading to defendant’s apprehension), aff’d, 65 N.Y.2d 683 (1985). But, even where the uncharged-crime evidence is admissible as background evidence, or to complete the narrative, the trial court must ensure that the probative value of the background evidence outweighs the potential prejudice to the defendant. See, e.g., People v. Resek, 3 N.Y.3d at 389. Unique circumstances may exist that would render the admission of the background evidence unduly prejudicial. See id. Of course, in evaluating the possible prejudice to the defendant, the trial court may properly consider whether appropriate limiting instruction would sufficiently mitigate any possible prejudice to the defendant. See People v. Till, 87 N.Y.2d at 837; People v. Tosca, 98 N.Y.2d at 661. The determination of whether the probative value outweighs the possible prejudice to defendant is a discretionary matter for the trial court. See People v. Cass, 18 N.Y.3d 553, n.3 (2012); People v. Alvino, 71 N.Y.2d at 242. Review of this determination is limited to whether the trial court abused its discretion. See People v. Cass, 18 N.Y.3d at 553, n.3; People v. Tosca, 98 N.Y.2d at 661. 34 In this case, evidence that the police stopped defendant pursuant to a reported, gun-point robbery was necessary to establish the immediately- preceding background of the incident, to complete the narrative of the event. Providing a full account of this brief and self-contained incident was essential to explain how and why the police responded as they did throughout the encounter, including the way in which they treated defendant. In the absence of the testimony, the jury would be left to wonder about the aggressiveness of the response and, particularly in light of defendant’s testimony, have found defendant’s version of overly zealous and violent police officers who refused to listen to his story to be far more credible than it deserved. The 911 call at issue reported the following information: at about 12:35 a.m., an individual with the last name Springer called 911 to report a robbery, wherein an African-American male, accompanied by two other African-American males, robbed him at gunpoint. Mr. Springer reported that the gun-bearing male had a white band-aid on his chin, and was wearing a white shirt with red sleeves, and dark pants. As established at trial, the police received a radio run, which included a similar description. In response, they drove with lights and sirens to the reported location. When, within less than two minutes, they observed 35 defendant and two others, they muted the lights and sirens, before pulling up next to them in their patrol car. Defendant, they saw, closely matched the description of the perpetrator: he wore a white tee-shirt with red sleeves and dark pants, wearing a white bandage on his chin. There, the police stopped defendant and immediately placed his arms on the trunk of the car. With one officer holding him against the car, the other officer thoroughly frisked him, from top to bottom. In this way, the police discovered the firearm in the cuffs of his pants. In light of these facts, it was critical that the People present a full account of this brief but cohesive event. On a basic level, the 911 and radio-run testimony was necessary to explain the reason that the police responded to the location in question and chose to stop and search defendant. Plainly, defendant closely matched the description of the perpetrator, was walking near the scene of the crime very soon after it had occurred, and was accompanied by two other African-American men. Consequently, the 911 and radio-run testimony demonstrated that the police had properly focused on defendant as the possible perpetrator of an armed robbery. But the 911 recording and the police testimony regarding the radio run was also necessary to explain to the jury that the police officers were 36 responding to a violent crime and searching for a possibly armed suspect because this background evidence informed every one of their actions regarding the apprehension and arrest of defendant. Because the officers were reporting to an armed robbery, they responded rapidly with lights and sirens. They arrived at the reported crime scene within less than two minutes before silencing their approach. Upon observing defendant, who closely matched the description of the perpetrator, they immediately focused on him and completely neglected the other two men, something that might otherwise perplex the jury. Because the officers were keenly aware that the perpetrator could be carrying a firearm, they immediately placed defendant against the patrol car, without any preamble, and one officer held him against the car during the entire ensuing search. And these proactive, forceful, actions by the police were entirely justified because, not only were they searching for an armed suspect, but they were searching for an individual who was reported to have recently used that weapon against others. The nature of the call and the officer’s initial response also affected their actions following the search. Both officers testified that, after they recovered the gun, defendant attempted to escape by pushing off from the car and grabbing his bottle of beer. The knowledge that defendant might have 37 just committed an armed robbery and having just recovered a concealed weapon from his person would have affected their assessment of the threat that he posed to their safety, so that even with other officers in the area, Officer Ziminski, assisted by Officer Moore, responded quickly and aggressively – he was afraid that defendant would use the glass beer bottle against them. More broadly, the information in the 911 recording, and the police testimony regarding the radio run was directly relevant to the officers’ credibility and competence. Playing the original 911 call allowed the jury to hear the victim describe the perpetrator in his own words and compare it to the officers’ testimony regarding the initial description of the perpetrator, as well as their description of defendant at the time of his apprehension, which, itself, was corroborated by his arrest photograph. This demonstrated that the officers’s testimony regarding the radio run was not an ex post attempt to justify their actions, and it also positively portrayed their ability to describe and remember the events. See People v. Danvers, 59 A.D.3d 229, 330 (1st Dept. 2009) (uncharged crime evidence properly admitted where it was relevant to motive and corroborated victim’s testimony); cf. People v. Huertas, 75 N.Y.2d 487, 492 (1990) (complainant’s prior description of perpetrator to police probative of her ability to observe and remember assailant). 18 In Old Chief, the Supreme Court ultimately determined that, when the commission of a prior felony is an element of the charged crime, a court must accept a defendant’s offer to stipulate that he had committed a prior felony. 519 U.S. at 174. This is consistent with New York law. See C.P.L. § 200.60. In reaching this conclusion, the Court noted that the need for narrative coherence and “evidentiary depth” has “virtually no application when the point at issue is a defendant’s legal 38 The background evidence was also important for the truth-finding process of the trial. Testimony is about more than dry facts, and allowing the officers to detail the events naturally, as they unfolded, without any artificial curtailment, permitted them to fully convey any attendant emotion, including fear and urgency, through cadence and other subtle expression, as the narrative progressed. Thus, and for example, without incumbrance, the officers could testify that they were concerned for their safety without appearing, to themselves or to the jury, as lacking a foundation for that fear. For the jury’s part, a full account of the events allowed it to consider, to parse, all of the information as it deliberated and determine for itself whether the officers’ initial actions were fully proper. This determination would necessarily impact their deliberation about the officers’ subsequent actions, because, as the Supreme Court has recognized, “making a case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a colorful story with descriptive richness.” Old Chief v. United States, 519 U.S. 172, 187 (1997).18 And this carries a “force beyond any linear status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him.” Old Chief, 519 U.S. at 190. As demonstrated above, far more than defendant’s legal status was at issue in this case. 39 scheme of reasoning,” providing its own momentum “not only to support conclusions but to sustain the willingness of jurors to draw inferences, whatever they may be, necessary to reach an honest verdict.” Id. For these reasons, the jury needed to understand the entire context of the incident in order to evaluate all of the police actions in this case. In contrast, the absence of this account would have destroyed the narrative coherence of the police response, to the People’s detriment. As Old Chief also recognized, a gap in the narrative may frustrate the juror’s natural expectations because, “People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapter,” id. at 189, and they might “penalize the party who disappoints them by drawing a negative inference against that party.” Id. at 188-89 (citations omitted). This Court, too, has recognized the importance of presenting a complete narrative to the jury, as reflected by its recognition of background evidence, or evidence that completes the narrative, as an established Molineux exception. See People v. Tosca, 98 N.Y.2d at 661; People v. Till, 87 N.Y.2d at 837. In People v. Montanez, 41 N.Y.2d 53, 55 (1976), for example, shortly 40 before the victim’s death, he and the defendant had argued about drugs. Noting that it would be sufficient to establish that there was “an argument of some sort,” the Court also recognized that “the People’s case might well have been prejudiced if their witnesses had given only generalized accounts of an argument without supplying any particulars.” Id. at 58; see also People v. Rivera, 96 N.Y.2d 749 (2001) (People entitled to explain material gap in narrative caused by defendant); People v. Barnes, 57 A.D.3d 289 (1st Dept. 2008) (limiting officers’ testimony to receipt of unspecified 911 call would have “placed a mystery before the jury and invited speculation”); People v. Valerio, 24 A.D.3d 133 (1st Dept. 2005) (defendant’s proposed redaction would have “deprived the jury of a full explanation of the actions of the police”). Thus, and contrary to defendant’s present contentions, neither the court nor the People was required to accept defendant’s proposed jury instruction and promise of restraint to replace a full account of the incident. Not only would this stipulation have destroyed the continuity and coherence of the People’s case, but it was plainly insufficient to convey what would have been lost by sheering off a crucial portion of the People’s case and would not have been sufficient to prevent unfair, but foreseeable, speculation about the 41 police actions, leaving open the possibility that the officers not only harassed defendant but responded in an overly aggressive manner; at the least, allowing the possibility that the police had acted overzealously and would, accordingly, be willing alter their testimony to convict defendant (see, infra, pages 52-57). In light of the strong probative value offered by the People’s background evidence, the lower court properly allowed its admission because the potential prejudice to defendant was minimal. The 911 recording and the police testimony of the radio run only minimally implicated defendant in the robbery. Without doubt, defendant, wearing a white bandage on his chin and wearing a red-and-white tee-shirt, closely matched the description of the perpetrator. But there was never any evidence, admitted for its truth, that a robbery had, in fact, occurred, or that the police had investigated an alleged robbery. Nor was there any evidence that the police or the prosecution ever considered defendant to be a suspect in this robbery: no one testified that defendant committed this robbery, and the police never testified that they had arrested defendant for the robbery. See People v. Butler, 59 A.D.3d 358 (1st Dept. 2009) (officer’s testimony that he approached defendant after hearing drug-related conversation minimally prejudicial since conversation did not include or refer to defendant); cf. People v. Tosca, 98 N.Y.2d at 661 (evidence 42 not unduly prejudicial even where complainant directly implicated defendant in crime); People v. Till, 87 N.Y.2d at 837. To the contrary, here, the court specifically instructed the jury that defendant was not charged with the robbery and left open the possibility that a robbery had not even occurred, which together with the absence of direct evidence, carried the strong implication that defendant was not the perpetrator of this robbery, or that there was no robbery. Moreover, the conduct of the trial diminished the significance of the uncharged-crime evidence. To put a fine point on the limited scope of this evidence, following the Sandoval hearing, the court ruled that the prosecutor could not cross-examine defendant with any details from the robbery to challenge his credibility (A77-85). Scrupulously adhering to this ruling, during his cross-examination, the prosecutor never asked defendant any questions regarding the robbery. It was as though there had been no robbery – the implication was that the prosecutor did not believe that the robbery was relevant or even that defendant had actually committed the robbery that night – and this was exactly the implication that would best minimize any prejudice to defendant and focus the jury on the facts of the case. In a similar vein, the prosecutor did not object when defendant elicited from the police officers that they had never recovered a chain from either defendant or the other two men 43 who were stopped and searched at the same time. In fact, the prosecutor explicitly declined to argue that these questions opened the door to evidence that defendant had committed a robbery (Moore: A234-36). Also, during his summation, the prosecutor never stated or implied that a robbery had actually occurred or that defendant had committed one. Defense counsel, too, was able to emphasize to the jury that, for its purposes, defendant was never implicated in a robbery. Defendant established that neither he nor the other two men possessed the victim’s allegedly stolen chain. Also, during his summation, defense counsel told the jury that defendant was not charged with the robbery; indeed, counsel correctly stated, “He’s not been indicted for a robbery” (Summation: A552). But counsel went further and argued that report of a robbery was consistent with defendant’s testimony and supported his version of the events. The alleged robbery, he argued, occurred around the same place and time that defendant claimed that he had found the gun, which could had been stashed by the actual robber; counsel stated, “If you rob somebody at gunpoint, you ain’t sticking around the same area,” and might instead “stash your gun” (Summation: A558-560). Thus, given the limited information available to the jury, to the extent that it gave any weight whatsoever to the 911 report, it would likely have 44 discounted the possibility that defendant was the robber, because what robber would discard the fruits of the robbery but not the weapon, while remaining near the crime scene. The actual prejudicial impact on defendant was therefore de minimis. But, in any case, any prejudice to defendant was nullified by the trial court’s careful and repeated instructions. Time and again, this Court has held that limiting instruction can cure the prejudicial impact of uncharged-crime evidence. See People v. Tosca, 98 N.Y.2d at 661; People v. Till, 87 N.Y.2d at 837; People v. Rivera, 96 N.Y.2d at 751 (“Any possible prejudice arising from this testimony was averted by the court’s comprehensive limiting instructions”); People v. Governale, 193 N.Y. 581 (1908) (trial court’s instruction ensured that jury was neither misled nor confused about purpose for which uncharged-crime evidence was admitted); cf. People v. Giles, 11 N.Y.3d at 500 (finding reversible error not in the admission of the evidence, but in trial court’s failure to issue limiting instruction); People v. Vails, 43 N.Y.2d 364, 369 (1977) (no prejudicial error where court told jury to disregard evidence of prior crime and struck it from record); see also People v. Baker, 14 N.Y.3d 266 (2010) (“[j]urors are presumed to follow the legal instructions they are given”). 45 Here, the lower court – from the very outset – made a concerted effort to nullify any possible prejudice to defendant from the admission of this evidence. On no less than four occasions, the court issued limiting instructions to the jury, none of which drew an objection from defendant, and each time informing the jury that it was not to consider the evidence for the truth of the matter asserted therein and that the evidence was only admitted to explain the police officers’ actions (Proceedings: A104-05, 133-34; Ziminski: 345-46, 582- 83). In addition, immediately after the prosecutor’s opening, the court told the jury that “defendant is not charged indeed[] with a robbery indeed a gun point robbery” (Proceedings: A104-05); after the prosecutor played the 911 recording, the court instructed the jury that defendant was not on trial for robbery (Proceedings: A133-34); after Officer Ziminski, the second testifying officer, mentioned the radio run, the court repeated its general instruction (Ziminski: A345-46); and, during the prosecutor’s summation, the court repeated its general instruction and told the jury that the evidence was “most certainly [not admitted] for the truth that a robbery in fact occurred or that defendant was in fact the one who did that robbery” (Summation: A582-83). In fact, here, the court’s instruction was virtually identical to the instruction provided in People v. Tosca. In Tosca, the court explained to the 46 jury that the testimony was offered only to provide background information and not offered as evidence that the defendant had committed an uncharged crime. 98 N.Y.2d at 661. Indeed, here the court went further by instructing the jury that defendant was not even charged with robbery and by implying that a robbery might not have occurred (A104-05, 582-83). Likewise, the court’s instructions here were consistent with that in People v. Till, where the court told the jury twice that the uncharged-crime evidence was only to establish the background of the events and provide continuity and not as proof of those crimes. 87 N.Y.2d at 837. In fact, in People v. Till, this Court held that one of the Appellate Division’s errors lied in its failure to adequately consider the lower court’s limiting instructions, id., which must have sufficiently mitigated the prejudicial impact to the defendant. In this case, the success of the trial court’s multiple instructions is reflected in the jury’s verdict. Here, the jury acquitted defendant of the possession-with-intent charge – the very charge that defense counsel argued at trial was susceptible to prejudice, that putting aside the background evidence “just too much for the jury to do” regarding this charge (Hearing: A33). This clearly signaled that the jury was fully able to evaluate the evidence for the limited purposes that it had been admitted – to provide background information 19 In fact, defendant now claims that the evidence had no probative value and that the trial court’s instruction did not cure the prejudice. He does not, however, argue that, assuming the evidence retains probative value, that value was outweighed by the potential prejudice to defendant. 47 and to explain the police actions. Otherwise, were the jury to have been improperly influenced by the evidence, it would have, in all likelihood, applied the presumption and found defendant guilty of the intent-to-use-unlawfully count, since it clearly rejected his temporary-and-lawful-possession defense. Thus, this “discerning and discreet verdict,” People v. Till, 87 N.Y.2d at 837, is further proof that the prejudicial value of the 911 recording and police testimony regarding the radio run was minimal or non-existent. Id.; cf. People v. Doshi, 93 N.Y.2d 499, 506 (1999) (jury’s acquittal of certain non-tainted counts emphasized that there was no prejudicial spillover). Consequently, in this case, the uncharged-crime evidence was properly admitted because it was strongly probative and relevant to the police actions throughout the incident, and its prejudicial impact to defendant was minimal. See People v. Tosca, 98 N.Y.2d at 661; People v. Till, 87 N.Y.2d at 837.19 Defendant nevertheless claims that the trial court erroneously admitted this background evidence because, by his offer of stipulation and promise of restraint, he had removed the issue from the case, and the 20 Facts have additionally been gleaned from the Appellate Division, First Department’s decision, which this Court reversed. People v. Resek, 307 A.D.2d 804 (1st Dept. 2004). 48 background evidence therefore had no probative value. But this Court should reject defendant’s argument, largely reliant upon People v. Resek, and instead limit Resek to its unique facts. In People v. Resek, the police were monitoring a car that had been reported stolen when they observed the defendant operating the car. 3 N.Y.3d at 387. Upon defendant’s arrest, they recovered nine glassines of heroin from the vehicle’s glove compartment and fourteen glassines from his person. Id. Nevertheless, a grand jury voted to dismiss the charge of criminal possession of a stolen car, and at trial defendant was only charged with drug-related crimes. Id. Concerned about unwarranted speculation by the jury, the People requested, and the court permitted, that the officers testify that they had observed the defendant in a car that had been reported stolen and had arrested the defendant for stealing that car.20 Id. at 387-88. Following this testimony, the court instructed the jury that the testimony was limited to explain the officers’ actions and that, “[i]t was not in any way to be inferred by you that defendant did or did not steal the car or anything of the kind.” Id. at 388. 49 Upon review, this Court ruled that the prejudice to defendant outweighed the probative value of the evidence. Id. at 389. Significantly, the Court found that the case was “critically different from Tosca and Till.” Id.. And, although it noted that the People had a legitimate concern that the jurors would conclude that the police had acted improperly, it held that the presentation of the evidence “left the jury with an incomplete and prejudicial narrative,” by providing a “one-sided” view of the precipitating events. Id. Moreover, the Court determined that the court’s instruction exacerbated the prejudice to defendant because it left open the possibility that defendant had stolen the car, even though the grand jury had dismissed that charge. Id. That the Resek defendant had been cleared by the grand jury presents a situation materially distinguishable from the present case, as well as the facts presented in People v. Tosca and People v. Till. The Resek defendant was confronted with police testimony that, in light of the court’s erroneous instruction, strongly implicated him in a crime for which he had been cleared. 3 N.Y.3d at 389. And, thus, the possibility that prejudice – no matter how minimal – could flow to the defendant, who had been cleared of the charged crimes, was overwhelmingly unfair and its admission was thus unduly prejudicial. 21 In addition, the Court found that, unlike People v. Gines, 36 N.Y.2d at 932- 33, or People v. Acevedo, 32 N.Y.2d 941 (1973), in People v. Cook, the uncharged crime had no relevance to the victim’s ability to identify the defendant. 42 N.Y.2d at 208. There was also no indication in either the Court’s decision, or the Appellate Division’s decision, that the trial court issued any limiting instructions to the jury. Id.; People v. Cook, 54 A.D.2d 528 (3d Dept. 1976). 50 This concern that a defendant be implicated in a crime that, by all indications, he did not commit has been previously expressed by this Court in the Molineux context. For example, in People v. Cook, 42 N.Y.2d 204, 208 (1977), the Court held that it was unduly prejudicial for the victim to testify that, during a home invasion, one of three perpetrators sexually assaulted her, and, significantly, found that there was no indication that the defendant was the perpetrator of the sexual assault.21 Similarly, in People v. Green, 35 N.Y.2d 437 (1974), the defendant faced trial for possessing drugs in his apartment; during a police raid, it was alleged that defendant had dropped the drugs out of a window. In People v. Green, however, the Court ruled that the lower court had committed reversible error by permitting evidence that, one month prior to drug-related crime at issue, the police had responded to a complaint at the defendant’s apartment, were refused entry, and heard the sound of a window. Id. at 439-40. The Court ultimately determined that the evidence was irrelevant and also noted that “[t]he old drug ‘complaint’ was in no way connected with defendant.” Id. at 440. 51 This case, however, presents none of those concerns. Here, defendant was never “cleared” of the robbery. To the contrary, immediately after defendant was arrested, the robbery complainant identified him as the perpetrator at the scene of the crime and recognized the gun as the one used in the robbery. It was only because of the victim’s unavailability – and not because of any indication that defendant was innocent – that the People never presented the robbery charges to the grand jury. Hence, there was never a determination, official or otherwise, that defendant did not commit the robbery of Frank Springer. If anything, here, the court’s instruction, the prosecutor’s restraint, and defense counsel’s summation created an impression that defendant had no involvement in a robbery, or that a robbery had never occurred. In contrast to People v. Resek, where the police testified that they had observed defendant operating a car that had been reported stolen, and had arrested him for that act, 3 N.Y.3d at 387-88, here, the police never testified that they had observed defendant commit a robbery, much less that they believed that a robbery had occurred or that defendant had committed that robbery. Nor did the prosecutor imply that there was a robbery, or that defendant had committed that robbery, by his questions or affirmative statements. Certainly, except for defendant, 52 himself, no one stated or implied that defendant had been arrested for the robbery. Consequently, the prejudicial impact to defendant was not nearly as harmful as the prejudice to the defendant in People v. Resek. Despite these clearly distinguishable factors, defendant argues that, based upon People v. Resek, this Court should find that the background information in this case had no probative value because, by his proposed court instruction, promise of restraint, and promise to raise a temporary-and-lawful- possession defense, he removed the issue of propriety of the police conduct from the case. But this contention is wrong for several reasons: defendant’s proposed arrangement was a poor substitute for the People’s evidence, and neither People v. Resek nor the Molineux caselaw supports his argument. Preliminarily, the court admitted the background evidence for a broader purpose than the issue as defined by defendant: it was admitted not just to establish of the propriety of the police conduct in stopping defendant, but rather the court admitted it to explain all of the police actions, and this was reflected in its repeated instructions to the jury, which drew no objection. In those instructions, the court stated repeatedly that the evidence was admitted to explain the police actions, which, of course, had a far broader purpose than simply to show the propriety of defendant’s stop. During the Molineux 53 application, the prosecutor clearly recognized and argued that the background evidence impacted, and was relevant to explain, all of the police officers’ subsequent actions. During the court’s Molineux ruling, although it stated that it would admit the evidence to explain the police conduct of responding to a particular area and looking for a particular individual, pursuant to a description, the court also said on other occasions, without limitation, that it was admitted to explain the police actions and also stated that it would adopt by reference “this memo,” which could only have been the People’s written Molineux application (Hearing: A42, 45-46). In this memo, The People argued, among other things, that the background evidence was necessary to complete the narrative and explain the reason that the police raced to the location and immediately stopped and frisked defendant for safety; the memo further argued that the background information was critical because defendant would likely attack the officers’ credibility and was necessary to preclude unfair speculation that the officers stopped defendant to harass him (Memo: A5, 7). Thus, and in light of the court’s unobjected-to jury instructions, it is clear that the evidence was admitted for the broader purpose of explaining the police conduct throughout the incident. 22 Defendant does not presently argue that the court could have or should have instructed the jurors that there was “no unlawful search and seizure.” The court properly rejected this suggestion, as issues regarding search and seizure are to be resolved at a pre-trial hearing. C.P.L. § 710.70(3). 54 But, in any case, instructing the jury that it was not to consider the circumstances of the stop because the issue had already been resolved was plainly inadequate in this case.22 Nothing in this instruction would have even informed the jury that, in fact, the police conduct had been proper, let alone that the police responded immediately, with the appropriate urgency – the report had been for a gunpoint robbery – and that they were able to quickly and accurately identify defendant as the individual who matched the description of the perpetrator. Nothing in this instruction would have explained to the jury that the individual officers had received a report of an armed suspect and that their initial interaction with defendant was fraught with danger, such that they immediately treated him decisively or even abruptly, and searched defendant’s person with great care, resulting in the recover of the gun in defendant’s pants cuff. And with only this instruction – without a full narrative of the precipitating events – the officers’ subsequent actions may have been misconstrued and may have appeared to be overly aggressive or otherwise improper, reflecting negatively on their credibility. 23 Neither of these two facts could have been affected by the court’s Molineux ruling, since they are both integral to defendant’s account of the incident. 55 In fact, the importance of the background information was made evident during defendant’s testimony. Defendant stated that he was doing nothing more than walking home from the deli when the police stopped him. Thus, even with a stipulation that the jury was not to consider the circumstances of his stop, without understanding that defendant almost exactly matched a suspect in an armed robbery, the jury could have concluded that the police action was perhaps legal but based on considerations of which the jury did not approve. Similarly, defendant testified that the police attacked him after he reacted – stunned – to their suggestion that he was a robber, making clear that an overly aggressive police response would be an issue at trial.23 Without the background information, the jury might have concluded that, from the beginning, the police had reacted unreasonably – that they assumed without justification that defendant was a dangerous criminal – and beat him up. And this determination that the police had acted improperly or illegally necessarily would have affected their credibility about all of the events, including their testimony that they found the gun in defendant’s cuffed pants, as opposed to his waistband. 24 In fact, the 911 call and Frank Springer’s identification of defendant as the perpetrator of the robbery could have been admitted for the truth of the matter because defendant had opened the door to that information through, inter alia, his testimony that he was not wearing a bandage on his chin and was not walking with two other African-American males when the police stopped him, as well as his testimony in support of his temporary-and-innocent-possession defense. See People v. Reid , 19 N.Y.3d 382 (2012) (defendant opened door to evidence that would otherwise violate his confrontation rights, when he suggested that unapprehended-other was present at the charged shooting and that the police were incompetent; this allowed prosecutor to introduce statement by co-defendant, who was present at shooting, that the alleged unapprehended other was not present). It would have been admissible to rebut his temporary-and-innocent-possession claim because it would have refuted his claims that his possession was both temporary and innocent. 56 Thus, these conclusions, neither of which is supported by the evidence, would necessarily have impacted the jury’s view of the police testimony regarding the manner in which they found the gun, to the unfair detriment of the People. Indeed, this evidence almost certainly would have been admissible following defendant’s testimony, even if only for the limited purpose of explaining the police actions.24 See People v. Rojas, 97 N.Y.2d 32, 37-39 (2001) (defendant opened the door to evidence that was necessary to refute “misleading assertion” that would have invited an acquittal based on erroneous belief that he was unjustly confined or mistreated). Defendant’s testimony that he was simply walking down the street holding a beer in a brown paper bag, when the police stopped and searched him, raised the specter of police impropriety. Defendant’s testimony that the 57 officers manhandled and beat him suggested that they were overly zealous, refused to listen to him, used excessive force, and thus would have been willing to lie about the way in which the gun was recovered. Defendant’s testimony that he did not have a bandage when the police saw him also suggested that the police had more seriously injured him than was warranted. The 911 call and related testimony addressed all of these issues, showing the reason for selecting defendant, the need for decisive and even aggressive action, and that the police were not the cause of the injury beneath the bandage. In this way, the evidence countered the suggestion that the police were over zealous, refused to listen to him, and might have been willing to distort their account to ensure defendant’s conviction. Similarly, defendant’s testimony that the police told him that he was “going down for a robbery,” would have invited rebuttal evidence that, in fact, the police had reasonable cause to believe that he had committed a robbery. And, even if defendant is correct that his proposed solution would have removed the issue of the propriety of the police stop from the case, the court’s instruction and defendant’s restraint would have done nothing to complete the narrative of this brief event and would not have compensated the People for the loss of their evidence. See People v. Tosca, 98 N.Y.2d at 661; 58 People v. Barnes, 57 A.D.2d at 290 (limiting officers’ testimony to receipt of unspecified 911 call would have “placed a mystery before the jury and invited speculation”); People v. Valerio, 24 A.D.3d at 133 (defendant’s proposed redaction would have “deprived the jury of a full explanation of the actions of the police”). Instead, left with this confusing instruction that failed to explain the circumstances of defendant’s initial stop, at the very least, the jury could have formed an impression that an important piece of the narrative had been withheld from them, and that its absence was attributable to the prosecution. Moreover, had the originally suggested charge been issued – that the circumstances of the stop had been resolved – it would have been vague, leaving open the possibility that the police conduct had been precisely as defendant wanted the jury to believe: highly aggressive and overly zealous. This in turn would have unfairly supported the defense view that he had told the police about the innocent possession of the gun and they had refused to listen, that the police were bent on defendant’s arrest and conviction, and that the police were lying about where and how they had recovered the weapon. An instruction that there had been no illegal search and seizure would merely have 59 removed a legal issue from the case and would not have addressed any of these other issues that could plainly have influenced the verdict. Instead, the facts in this case fall squarely in line with those cases in which this Court has ruled that the People are not required to accept an inadequate stipulation in lieu of evidence. Recently, in People v. Alfaro, this Court permitted the People to introduce police testimony that they had recovered an imitation gun, handcuffs, and handcuff keys from defendant during the course of his arrest, in order to complete the narrative and to prove the defendant’s intent – even though the defendant did not dispute that a robbery had occurred. 2012 NY Slip Op 7140 at *2-4. In People v. Tosca, the Court found no error when the lower court permitted the prosecution to introduce testimony regarding an uncharged, armed dispute instead of forcing the prosecution to accept a stipulation that the officers were responding to an “unspecified radio run.” 98 N.Y.2d at 661; 287 A.D.2d at 330. And in People v. Giles, where the People introduced evidence that the stolen credit cards at issue had been taken from a burglarized house, the Court affirmed the Appellate Division’s ruling, 47 A.D.3d 88 (1st Dept. 2007), that the People were not required to accept the defendant’s proposed stipulation that the two cards were 60 stolen because he never offered to stipulate that he knew the cards were stolen. 11 N.Y.3d at 497. The Court’s rulings, which affirm the People’s ability to reject weak and inadequate stipulations, or incomplete concessions, are consistent with its Molineux jurisprudence. In general, the Court has rebuffed efforts to require the prosecution to accept stipulations in lieu of evidence. For instance, as to the well established identity exception, the People may admit evidence of uncharged crimes unless the defendant’s identity is conclusively established. See People v. Agina, 18 N.Y.3d 600, 603 (2012); People v Condon, 26 N.Y.2d 139, 142 (1970); see also People v. Cook, 93 N.Y.2d 840, 841 (1999) (even though defense was that no rape had occurred, People could introduce evidence of prior abusive relationship to prove forcible compulsion). Likewise, in People v. Robinson, 93 N.Y.2d 986, 987 (1999), the Court rejected the defendant’s contention that the lower court had erred by refusing his alleged concession that he had knowledge of the weight of the drugs at issue and instead permitting the People to prove that he had three prior drug-related convictions. This was because the defendant never actually conceded knowledge or definitively offered to stipulate that the element of the crime was satisfied. Id. at 987-88; cf. People v. Alvino, 71 N.Y.2d at 242 (People may 61 admit evidence of uncharged crimes to prove intent if it cannot be easily inferred from the commission of the act itself). These cases are consistent with the guiding principle that all relevant evidence is admissible, and the People are “not bound to stop after presenting minimum evidence but could go on and present all the admissible evidence available to them,” People v. Buie, 86 N.Y.2d 501, 509 (1995) (quoting People v. Alvino, 71 N.Y.2d at 245), and that the People’s ability to present a prima facie case without the uncharged crime evidence is “immaterial.” People v. Alvino, 71 N.Y.2d at 245. And People v. Resek did not alter that basic evidentiary rule. In People v. Resek, the Court engaged in the traditional Molineux analysis, weighing the probative value against the potential for prejudice to the defendant, and concluded that the prejudice was too great. 3 N.Y.3d at 389. People v. Resek never ruled that the background evidence had no probative value, id. at 390, and certainly never ruled that the People must accept an inadequate stipulation in lieu of evidence, even where the probative value was high and the prejudicial impact minimal, as was the case here. Undoubtedly, determining the admissibility of background evidence, or evidence that completes the narrative, is “delicate business.” 25 Nor does People v. Crandall, 67 N.Y.2d 111 (1986), cited by defendant, compel a different result. In People v. Crandall, the Court ruled that certain parts of conversations between the defendant and a police officer, which suggested prior uncharged drug transactions, were not “inextricably interwoven,” because they were not necessary to understand the acts or words of the admissible evidence. Id. at 116- 17. Consequently, this case did not involve the admission of background evidence and does not support a determination that, in this case, the background evidence was irrelevant. 62 People v. Resek, 3 N.Y.3d at 389. But as Old Chief recognized, “a syllogism is not a story,” 519 U.S. at 189, and “a piece of evidence may address any number of separate elements, striking hard just because it shows so much at once . . ..” Id. at 187. In this case, which presents none of the unique concerns of People v. Resek, the People were not required to exchange a full accounting of the crime for defendant’s proposed jury instruction.25 For these reasons, this Court should affirm the Appellate Division’s decision rejecting defendant’s claim. See People v. Tosca, 98 N.Y.2d at 661; see also People v. Andrade, 87 A.D.3d 160 (1st Dept. 2011). On a final note, contrary to defendant’s contention, permitting the admission of this background evidence would not “justify the automatic admissibility of uncharged crime evidence in every prosecution where a black or Hispanic defendant is charged only with possession of contraband” (Def. Br. at 19). Applications to admit evidence of uncharged crime evidence are necessarily fact specific; no single case is exactly alike. In this case, the race 63 of the defendant might have increased the People and the court’s concern that the jury would infer bad faith by the police, but it was never a material factor in either the People’s argument or the court’s determination: were defendant not a person of color, the People would have interposed the same request and the court would have reached the same conclusion. In fact, in reaching its ruling, the court referenced a similar case, presenting a similar issue, that he had presided over, making no mention of the defendant’s race. In this case, the court noted that the determining factor in its decision was the caselaw, which it believed to support the admission of this background evidence (Hearing: A45-46). B. Any Error in the Admission of the Background Evidence Was Harmless. Even assuming that the court erred by admitting the 911 recording and officers’ radio run testimony, any error would have been harmless, as there is no significant probability that the jury would have acquitted defendant of weapons’ possession but for the alleged error. See People v. Crimmins, 36 N.Y.2d 230 (1975). At trial, defendant did not contest that he had possessed a loaded and operable firearm on his person, but instead asserted a temporary-and-lawful possession defense. But, because defendant’s account regarding his discovery of the gun – he thought it was a toy underneath two 64 dumpsters – was incredible, and because the police officers testified credibly that they had recovered the gun from inside of defendant’s cuffed pants, the People overwhelmingly disproved his defense and thus overwhelmingly proved his guilt. Preliminarily, although defendant claims that the court’s ruling implicated his due process right to a fair trial, he failed to raise this claim at trial, and it is therefore unpreserved for this Court’s review. See People v. Maher, 89 N.Y.2d 456, 462 (1997) (since defendant claimed only violation of evidentiary rule, Court reviewed harmlessness under significant possibility standard); see also People v. Arafet, 13 N.Y.3d 460, 467 (2009) (reviewing harmless error under significant possibility standard). Since defendant cannot raise a constitutional claim, this Court should review harmlessness by determining whether there is a “significant probability, rather than only a rational possibility, in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred.” People v. Crimmins, 36 N.Y.2d at 242; see also People v. Arafet, 13 N.Y.3d at 467; People v. Gillyard, 13 N.Y.3d 351, 356 (2009). Here, the evidence against defendant was overwhelming, and there is no significant probability that the jury would have acquitted defendant of 65 weapons possession had the court precluded the 911 recording and the officers’ testimony regarding the radio run. In this case that rested largely upon police testimony, both Officer Moore and Officer Ziminski testified in a consistent and largely unimpeached manner. Both officers testified that, during a search of defendant, Officer Moore recovered a loaded and operable .22 caliber black Baretta pistol from inside of his rolled-up left pants cuff. Significantly, and despite the divergent account of the gun’s discovery, defendant’s own testimony corroborated that the police had recovered from his person the gun that was admitted into evidence for the jury to see and to hold. Defendant claimed the gun, admitting that he had indeed possessed it, albeit for what he claimed were innocent purposes. The only issue was whether defendant had innocently possessed the gun, and the People overwhelmingly disproved this defense of temporary and lawful possession. Again, the police officers’ testimony was never significantly impeached, and the quality – the strength in the details – of their corroborating accounts demonstrated that, contrary to defendant’s trial claim, he did not find it under a trash bin in the dark of night and stow it in his waistband for safekeeping, that, contrary to defendant’s contention, he did not 66 exclaim to the police that he had “found something” before the gun tumbled out of his waistband (Morris: A446-47). Instead, the police testimony established that the officers had found the gun inside of defendant’s rolled-up pants cuff. In fact, defendant’s own account strengthened the People’s case because it was incredible. According to defendant, after drinking all night, in a quest for cigarettes, he walked past two trash bins near a CVS drugstore and spotted what he believed to be a toy gun underneath and between the bins, in front of the rear wheel (Morris: A445-46, 456-57, 463-66, 483-84, 505, 504- 09). That defendant had spotted this gun underneath and between two dumpsters in the middle of the night would have strained credibility, but defendant shifted his testimony in the middle of cross-examination about the dumpsters’ location, admitting that he first agreed that the dumpsters were in one location and then “only later” changing his story (Morris: A508). Insofar as defendant’s account of the gun’s recovery differed from the police officers – defendant claimed that the gun had fallen out of his waistband; the police stated that they had recovered the gun from inside of his rolled-up pants’ cuff – the officers’ testimony was more credible. Easily, the jury could have concluded that an elastic waistband of sweat pants is not a reasonable place to stow a loaded weapon, much less one that defendant 67 innocently found and intended to safeguard, particularly when defendant rejected another option – inside of the pants’ pocket – as too conspicuous. Almost certainly, the jury concluded that defendant hid the gun inside of his rolled-up pants’ cuff, determining both that his curious hiding place for the gun denoted a greater-than-temporary possessory interest and that he lied during his testimony. Other details of defendant’s story were no more credible. Defendant claimed that, even though he wanted to call the police, he had discovered that his cell phone battery was dead. Instead of immediately returning home, defendant proceeded to the deli with the gun in his waistband. And, within less than two minutes after he found the gun, the police happened upon him, and he was unable to warn them of his discovery before it was too late. But this pattern of unlucky happenstance appeared elsewhere in defendant’s testimony. According to defendant, he had a conviction for Unauthorized Use of a Vehicle because his friends picked him up – he had no idea that the car was stolen – and then shortly thereafter crashed the car. According to defendant, the reason that he had a marijuana conviction is because, as he was walking with his friend, his friend handed him a bag of 68 marijuana to hold because the friend wanted to light a cigarette. It was only then that the police arrived and found him holding that bag of marijuana. Certainly, defendant’s repeated innocent explanations for otherwise apparently illegal actions supported a jury determination that defendant was not a credible witness. Thus, in light of the incredible nature of defendant’s story and his history of blaming misfortune for his misconduct, the jury was absolutely justified in rejecting his temporary-lawful-possession defense. And, in light of the strength of the prosecution’s case, there was overwhelming evidence of defendant’s guilt. Here, also, the nature of the alleged error, and the efforts taken by the trial court and the prosecutor to mitigate any possible prejudice, rendered it harmless. As discussed above, the trial court made every effort to instruct the jury that it was not to consider the evidence for the truth of the matter asserted therein, and that defendant was never charged with the robbery. And, in fact, the prosecutor’s restrained cross-examination of defendant only reinforced this effort. During his cross-examination of defendant, the prosecutor never questioned defendant about the robbery: during the cross-examination, it was as if the robbery had never even occurred. 69 This absence – this failure to impeach defendant with what naturally would have contradicted his temporary and innocent lawful claim – must have communicated to the jury that the prosecutor did not believe that defendant had participated in a robbery. Consequently, in light of the overwhelming evidence presented by the prosecution, as well as the efforts to mitigate any possible prejudice to defendant, any error would have been harmless. See People v. Smith, 97 N.Y.2d 324 (2002) (overwhelming evidence and court’s curative instruction rendered error harmless). Defendant claims, however, that its prejudicial impact can be viewed through the jury’s verdict. But, to the contrary, as argued above, it is clear that the jury was not unduly influenced by the 911 recording. Had the jury believed that defendant participated in a robbery, it likely would have determined that defendant possessed the gun with an intent to use it unlawfully. Indeed, the jury need not even have found that the People had proved his involvement in the robbery beyond a reasonable doubt; had the jurors been influenced by the 911 recording, they could have simply applied the presumption and found defendant guilty of the intent-to-use-unlawfully weapons’ charge. 70 Moreover, contrary to defendant’s contention, the fact that the jury acquitted defendant of the resisting arrest charge did not mean that the jurors believed his account of the arrest, let alone that they believed his account of the gun. The jury must have disbelieved his account of the gun beyond a reasonable doubt – otherwise it could not have convicted him of weapons’ possession. Thus, their acquittal of him of the resisting arrest charge means – at most – that it did not believe the police account of this limited portion of the narrative beyond a reasonable doubt, but could also have indicated their displeasure that defendant was injured during the arrest, credibility aside. In sum, there was overwhelming evidence that defendant unlawfully possessed a loaded firearm and no significant probability that defendant would have been acquitted but for the uncharged crime evidence. 71 CONCLUSION The order of the Appellate Division affirming defendant’s judgment of conviction should be affirmed. Respectfully submitted, RICHARD A. BROWN District Attorney Queens County By: ________________________ Rebecca Height Assistant District Attorney ROBERT J. MASTERS JOHN M. CASTELLANO REBECCA HEIGHT Assistant District Attorneys of Counsel December 3, 2012